Alexander Urges Others Not to Forget Federalism

Posted on June 20, 2005

Many candidates for Congress pledge allegiance to the idea of bringing the common-sense values of their own regions with them to Washington. Upon arrival, however, the temptation to use federal power, even at the expense of state and local governments back home, becomes too great for most members to resist. “I’ve been disappointed to find so few voices in the United States Senate who respect the prerogatives of governors and mayors to make their own decisions,” complains Lamar Alexander, who’s in his third year as a senator. “The conservatives are as bad as the liberals — they get a good idea and then send the bill home.” Alexander, Tennessee’s Republican governor from 1979 through 1986, has emerged as one of the most ardent advocates for state and local governments in Washington, working to protect their interests on issues from immigration to Internet taxation. For example, he backed a provision in the fiscal 2006 budget resolution designed to make it tougher for Congress to pass the cost of new federal programs down to states or localities. His latest effort on the federalism front is a bill that would set time limits on federal consent decrees. Such consent decrees — essentially contracts, often enforced by the federal courts, between some unit of government and either another unit of government or an aggrieved group of citizens — have become a primary tool for ensuring that states and localities comply with federal rules in areas such as special education, water quality and Medicaid. Alexander contends that the decrees don’t offer enough flexibility to the potentially endless generations of lawmakers required to live under them. He might feel some personal responsibility on the issue, since a Medicaid decree he signed two decades ago is one of several bedeviling Tennessee’s current governor, Democrat Phil Bredesen, as he tries to overhaul the troubled TennCare system. “My sense is that he might be doing this both for home-state reasons and earnest, cerebral, good-government reasons,” says Michael Greve, director of the Federalism Project at the American Enterprise Institute, a conservative think tank. “He’s long lamented the fact that once these politicians come to Washington, they forget they were ever in the states.” Predictably, advocates for various causes that have made good use of consent decrees oppose Alexander’s proposal. “This bill is a misguided effort to render enforcement of virtually all federal obligations against state governments unworkable,” says Simon Lazarus, public policy counsel for the National Senior Citizens Law Center, one of more than 80 groups that signed a letter to Congress in April opposing the legislation. More surprising is the response from the very groups Alexander intends to help. Many lobbyists at state and local organizations are reluctant to criticize the bill publicly, but they are making clear their worry that such a law would diminish a legal device that mayors, county executives and governors have found handy for meeting various federal obligations. Alexander and the sponsor of companion House legislation, Majority Whip Roy Blunt, R-Mo., have sought to shield their bills from possible charges that they represent yet another attack on the judiciary, noting that judges would remain wholly in charge of the process. “This is more about inactive public officials than overly active judges,” said Blunt, whose eldest son, Matt, is Missouri’s new Republican governor. The Fate of States When he was growing up, Alexander recalls, “the single most important thing about the Republican Party was that people didn’t like Washington telling them what to do.” As governor, he chafed against federal restrictions surrounding issues such as education, highways and surface mining. The dominant theme of his chairmanship of the National Governors Association in the mid-1980s was trying to get Washington off his colleagues’ backs. “Federalism . . . is one of the most important principles we have,” he said at a June 9 American Enterprise Institute forum on his consent decree bill. Alexander’s skepticism about the wisdom of the federal government has roots not only in his career in state politics but his service as a federal official as well. As secretary of Education under President George Bush, he says, he concluded that “there’s no one wise enough in a single small department in Washington to make that many good decisions that involve 50 million schoolchildren across America and tens of thousands of schools.” The most memorable line of his first presidential run in 1996 was “cut their pay and send them home,” a reference to his idea that congressional salaries and sessions should both be halved. That brand of skepticism used to be widely shared among congressional Republicans, many of whom — including Alexander — talked a decade ago about abolishing the Education Department. But the education policy overhaul of 2002, enacted with broad GOP support, vastly expanded federal involvement in elementary and secondary education. And Alexander’s colleagues have not shied from extending the federal arm into areas traditionally left to lower levels of government. Concern about intergovernmental relations, after all, can hardly compare with tax cuts for sex appeal. Security worries led even Alexander to reluctantly support tough federal standards for driver’s licenses enacted this year. The move toward more federal intrusion, though, is also happening because more and more businesses are national or global in scope. Where once companies were more comfortable being regulated by legislatures back home, many now turn to Congress to save them from meeting requirements that may not be the same in any two states. The insurance industry, for instance, which is regulated by states, has been lobbying for several years to win some federal oversight that would pre-empt the states. That means that members of Congress often let their concerns about federalism take a back seat to the pressures of the issue at hand. Many of the major fights in Congress occur, after all, when competing principles that enjoy broad support come into conflict. “They may vote another way, but they do so with a heavy conscience,” says Democrat Thomas R. Carper, Delaware’s two-term governor before coming to the Senate in 2001. Carper and Alexander led the fight last fall against a permanent ban on state and local Internet access taxes, persuading their colleagues to support a time-limited moratorium that permits state and local governments to tax phone calls made over the Internet. Telecommunications taxes are an important revenue source for some state and local governments. Seeking Consent Most members of Congress formerly served in state or local office, and they all recognize that they represent the same constituents as their counterparts in lower levels of government. But right now, states and localities are lucky just to play good defense. There’s no money in the federal budget for big new spending programs — meaning not only that state and local grant programs are on the chopping block, but also that the temptation is always there for Congress to address domestic problems and require states, counties or cities to pick up the tab. The National Conference of State Legislatures (NCSL) estimates that such unfunded mandates cost states $29.3 billion in fiscal 2004. Such “fiscal federalism” ploys were supposed to be abolished a decade ago under a law written by the new Republican congressional majority then in the full flush of distrust of big government in Washington. But the law has never been invoked in the Senate — in part because, until now, it took only 51 votes to override a budget point of order raised against an unfunded mandate. This year’s budget resolution, however, raised the threshold to 60 votes — a provision written by New Hampshire Republican Judd Gregg, another of the nine former governors now in the Senate. The provision means that the group of ex-governors, who remain particularly attentive to protecting the states and cities, will have a lot more leverage. Alexander persistently presses just that point in discussions with his colleagues. Last year, for instance, he persuaded Sen. John McCain, the Arizona Republican, to make sure that the immigration package he is pushing wouldn’t create new fiscal burdens for the folks back home. But with his consent decree bill, Alexander might be pressing the cause further than even his fans want him to go. The Supreme Court ruled last year in Frew v. Hawkins that states have to abide by the terms of consent decrees, but the justices offered guidance to lower courts that they should modify decrees when states can show they have met their federal obligations. There are plenty of horror stories about decades-old decrees not only remaining in force but mutating and taking wide swaths of policy out of the hands of officials who were not yet in college, much less in office, when the decrees were originally signed. Many of them are collected in the 2003 book “Democracy by Decree,” co-written by a law school classmate of Alexander’s, Ross Sandler. Reading that book, with Tennessee’s Medicaid mess in mind, inspired the freshman senator to try to find a legislative solution. Consent decrees not only ensure compliance with federal law but outline quite specific plans for compliance. Government officials negotiate these terms with plaintiffs’ attorneys under the supervision of judges, who are generally glad to sign off on their agreed-upon plans. Officials complain, however, that they can find no exit from the plans once a decree has been entered into. Even if they operate in good faith, plaintiffs often refuse to modify the agreements without extracting additional concessions. Alexander’s bill would permit government officials to return to court four years after a consent decree had been agreed to — or following the election of a new governor or mayor. The burden at that point would be on the plaintiffs to prove that continued enforcement of the decree was still needed. As things stand, it is common for consent decrees to last for 20 years or more. Waving the Lantern Alexander characterizes his bill as narrowly written, but it could have broad ramifications. Its critics say his proposed changes could force many more plaintiffs to litigate all the way to the end, rather than reaching a mutually acceptable settlement. “A consent decree can be a very positive way of resolving a case, and this bill would potentially take them away,” says Daniel Kohrman, a senior attorney with AARP. “It would open up to defendants strong incentives not to comply and simply wait until the next election or the arbitrary sunset time the law would call for.” Some governors have backed the bill, including Republican Mike Huckabee of Arkansas, the next chairman of the National Governors Association, who touted it during a meeting with President Bush. The state and local government lobbies, however, are stepping gingerly around it. They don’t want to criticize it publicly, for fear of offending their ally in the Senate, but aren’t finding consensus in support of it among their memberships. “I don’t think the issue was on anybody’s radar screen until he actually raised it,” says Michael Bird, NCSL’s federal affairs counsel. The reason is that consent decrees, for all the headaches they may cause, put issues pretty well to bed. And one dirty little secret about them is that sometimes they are less antagonistic than they are collusive. Local officials might be happy to demand more program funds from their state legislature by pointing out that they are under court order to spend a fixed amount. Some state officials, meanwhile, worry that the bill would allow cross-border issues, such as disputes over water rights, to be reopened when a new governor was elected. The Alexander-Blunt bill also may get caught up, perhaps unfairly, in higher-profile congressional battles over how to revamp the litigation system and whom to confirm to the federal courts. For all these reasons, the consent decree bill in the short term probably faces a typical legislative fate. Lobbyists who are following it predict that it has sufficient support to pass the House, but will have a hard time in the Senate. But even if it fails to pass this Congress, it will remain part of the continuing debate over federalism. Alexander himself recognizes that he will not get far promoting the cause of states and localities unless he has their active support. He recently told county officials who were meeting in Washington, “I can be a Paul Revere for federalism and I can wave a lantern from the tower for federalism, but you’ve got to be the Minutemen.”